The regulations were due to enter into force in October 2011 for large shops and October 2013 for small shops. However, following publication of the Government’s Tobacco Control Plan on 9 March 2011 implementation of the regulations was postponed until April 2012 and April 2015 for large and small shops respectively.

The Tobacco Advertising and Promotion Act received Royal Assent on 7 November 2002 and came into force on 14 February 2003.The Tobacco Advertising and Promotion Act 2002 comprehensively bans the advertising and promotion of tobacco products including the use of brand-sharing and sponsorship of cultural and sport events.

The ban was implemented in stages as follows:

14 February 2003 – From that date it became illegal to advertise tobacco products on billboards, in newspapers and magazines. Direct mail was banned in May 2003.

On 30 May 2001 the European Commission presented its revised proposal for a Directive on tobacco advertising and sponsorship. In August 2001 the Government issued a consultation document in respect of this proposal.The proposal initially concerned tobacco products, defined as ‘all products intended to be smoked, sniffed, sucked or chewed’. However during discussions on the proposal, other Member States have suggested that any restrictions on the advertising and sponsorship of tobacco products should also include cigarette papers.

On 2 December 2002 the Council reached an agreement on a proposed directive to ban tobacco advertising. The directive covers four areas of cross border advertising (printed publications, internet, radio and sponsorship), but does not include indirect advertising.

Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products

Public consultation on a proposal for a regulation concerning sales promotions in the internal market.

From previous European Commission papers in the 1990s it was concluded that long-standing market controls in many member states prevented the development of a Single Market in sales promotions across borders. In October 2001, the European Commission issued a proposals for a Regulation on Sales Promotion, the Department of Trade and Industry undertook a consultation to examine the issue.

This directive establishes a free internal market in information society products such as services offered over the web. Its relevance to tobacco is that uses a particular definition for ‘commercial communication’ (advertising) – see article 2(f) and provides in-principle exemptions from general freedom for public health.

Exemption for Public Health

Article 1 (3). This Directive complements Community law applicable to information society services without prejudice to the level of protection for, in particular, public health and consumer interests, as established by Community acts and national legislation implementing them in so far as this does not restrict the freedom to provide information society services.Article 3 (4) defines exemptions from single market rules more specifically.

In the interest of a strong internal market, emphasis of this EU proposal falls on the primacy of free movement of goods and services within member states. It seeks to harmonise differing sales promotion regulations between countries to minimise distortions in trade. It describes sales promotion as financial discounts, free gifts, promotional contests or games offered by a producer in order to expand markets.Though the proposal makes reference to public health in Article 5 (protection of children and adolescents), it remains highly controversial – article 3 of the proposed regulation prohibits member states from restricting commercial communications of a sales promotion unless required by community law.

In the absence of an EU directive explicitly prohibiting tobacco promotion, the proposal carries the potential to undermine any effort to ban the promotion of tobacco products at national levels.

A previous EC directive to ban tobacco advertising 98/43/EC was struck down by a European Court of Justice ruling (Case C-376/98) on account of its legal base.The court argued that the Directive must contribute to “eliminating appreciable distortions of competition” and “eliminating obstacles to the free movement of good and to the freedom to provide services.” The Court found the Directive had failed these tests.

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